APRL is leading the way toward modernizing the practice of law.

Yesterday was potentially a very big day in the world of lawyers and clients. I am very pleased to report that yesterday the Association of Professional Responsibility Lawyers released a proposed overhaul of Model Rule 5.5., called on the ABA to take action to adopt it, and disseminated a very thorough and detailed Report explaining why the kind of reform called for by the rule proposal is both entirely justified and long overdue.

I have spent some time over the last 24 hours talking with a few reporters about this development, and I intend to update this post with links to stories as they come out. But talking the situation through with reporters has also, I think, helped me distill down a bit how best to describe the potential significance of this proposal and how strikingly different it is from the sort of “stop gap” measures that exist today with respect to various ethics opinions that have been put out by states during the course of the pandemic.

First, because readers of the blog know that I seem to always manage to quote myself when I can, here is an excerpt from my letter to the current President of the ABA that describes what APRL is proposing:

Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time. At the same time, our new Model Rule 5.5 would still preserve judicial authority in each state to regulate who appears in state courts, emphasizes that lawyers must be competent under Rule 1.1 no matter where they are practicing or what kind of legal services they are providing, and ensures that lawyers will be subject to the disciplinary jurisdiction of not only their state of licensure but wherever they practice.

Second, while I am only one of 10 co-authors of the Report itself, I want to highlight a very important portion of that report (obviously written by someone else with better writing skills) in terms of how a fallacy about how competence as a lawyer works under the current approach to lawyering and how that feeds into a disconnect that impacts problems with access to legal services:

A lawyer’s voluntary devotion to one area of practice, however, in no way restricts the scope of the lawyer’s license in their state. An attorney with 20 years of experience, but only involving family law, who learns of a neighbor’s, relative’s, or former client’s severe car accident may agree to represent that person. Similarly, a lawyer who, following admission to the bar, works in a non-legal setting for twenty years, faces no licensing restrictions in taking on that same personal injury case as long as they have an active law license. Moreover, a newly minted lawyer immediately after passing the bar could take on a family law case, a car-accident lawsuit, and a contract negotiation with a hospital for a physician. The lawyers in these scenarios might not be the best lawyers for the job, but the Rules of Professional Conduct assume that the lawyers can educate themselves about the subject matter and competently handle the case. See Rule 1.1, cmt. [2].


The “Competency Fallacy of Rule 5.5,” however, dictates that a lawyer licensed in “State A”, who has devoted their entire career to personal injury work for example, would not be competent to represent the car-accident victim described above (without the association of local counsel) because the lawyer is presumed to be incapable of knowing or coming to understand “the law of State B.” Instead, if that State A-licensed lawyer wanted to be able to regularly represent clients with personal injury cases in State B, the lawyer would have to obtain a second license to practice law, a license issued by State B. Those who accept the current systemic issues often rely upon arguments that lawyers who wish to be able to practice across state lines more freely can simply obtain such additional licenses through reciprocity. This option to pursue additional licenses through reciprocity is not an adequate solution, and for many jurisdictions, is simply not true.

APRL’s proposal is a long-time coming but also long overdue.

If you believe that our profession’s approach to the multi-jurisdictional practice of law needs to change, I would encourage you to support APRL’s efforts and speak out to help us effectuate change in your jurisdiction. The current ABA Model Rule, along with a variety of state ethics opinions issued during the pandemic, have given some solace to lawyers about what might be okay on a “temporary” basis.

APRL’s proposal, however, would lend permanence to the idea that as long as a lawyer is transparent with their client about where they are licensed, then they could live or have an office anywhere without fear that representing a client in some other state or assisting a client with navigating and interpreting the law of some other state would be unethical or illegal. Our proposal would also improve the lives of lawyers with traditional practices who go into the office of their firm every day and live and work in the same jurisdiction because they would not have to second-guess whether a client who wants to hire them can do so without also having to enlist the assistance of an additional lawyer simply because that other lawyer is “local.”

As an earlier portion of the APRL Report explains, APRL’s proposal:

acknowledges that clients must continue to be protected from the incompetent practice of law. However, the proposal also elevates the client’s right to choose counsel to a co-equal status in the context of the regulation of multijurisdictional practice and acknowledges that protecting clients from incompetent lawyering does not require artificial boundaries that prevent clients from choosing competent counsel of their choice even if the lawyer they choose is licensed elsewhere.

A copy of my letter to ABA President Turner, APRL’s proposed Rule 5.5, and the Report can be accessed at the link below.

To date, the only story I know that is up is this first, short one from Bob Ambrogi.

But stay tuned …

Edited to add additional articles:

Reuters.

ABA Journal Online

Bloomberg Law

Above The Law

Two updates: Ruff[alo]ed feathers in Georgia & Piercing personal jurisdiction in California

Apologies for the drought in content over the last little bit as I’ve been traveling my state for my Ethics Roadshow doing a three-hour presentation in four cities about what I think the future looks like for those who will still be practicing in 2025.

For today, two updates of note that involve important, ongoing topics but that also involve strikingly different interactions.

I’ve written quite a few posts during 2019 and I’ve had subsequent interactions with lawyers involved in two of those matters. One of the interactions has been cordial and one has not. As with all things in the world, their situations and lives have continued and more has transpired regarding their disputes since I interacted with their stories.

The lawyer taking on whistleblower status in a high-profile dispute with his former law firm that involved litigation on both coasts that I wrote about earlier this year (under the heading “A lawsuit about a lawsuit that touches on everything about 2019?”) has emailed me on a few occasions to update me about the litigation proceedings. His dispute with his former law firm involves very serious allegations being thrown in both directions by the adversarial sides.

Most recently, the California lawsuit that was filed against him by his former firm, after he had filed his own lawsuit against his former firm in New York, appears to have been dismissed/quashed on the basis of a lack of personal jurisdiction.

The New York litigation between the parties is ongoing, however. One piece of the ongoing dispute appears to be over whether the lawyer will be entitled to obtain a copy of the investigative report upon which the firm allegedly relied in deciding to terminate him and whether another sealed litigation matter in New York should be unsealed. Should you be interested, you can read the firm’s opposition to those efforts and the lawyer’s reply to that opposition at the buttons below.

Another post I wrote earlier this year was about a Georgia lawyer who was being disbarred and who provided an example of how difficult it can be in a disciplinary case to plead the Fifth Amendment without being visited with dire consequences for one’s license. She has also corresponded with me, but her interactions with me have involved demanding that I delete my prior post about her disbarment.

Given that my prior writing on her situation relied upon both the Georgia Supreme Court disbarment order and reporting by the ABA Journal online, I’m not concerned about any threats or demands to delete content. What I’ve written is clearly covered by fair report privilege as well as worthy of protection under my state’s anti-SLAPP statute.

But I did want to share a filing she has sent me that she has made with the United States Supreme Court because it raises issues of potential real importance in the world of lawyering and disciplinary defense.

As I wrote back at the time, even though disciplinary proceedings are treated as quasi-criminal, lawyers who plead the Fifth when trying to defend their licenses invariably have such refusal to testify held against them. This particular lawyer is now seeking relief from the U.S. Supreme Court to hear her case and to stay the disbarment, in part, on the basis of arguments over the correct application of In re Ruffalo and other U.S. Supreme Court decisions addressing the impact of asserting the Fifth Amendment on a disciplinary matter.

Her effort to have the Court take her case and overturn the disbarment also raises an issue that I talked about some during my recent Ethics Roadshow, the impact of the United States Supreme Court’s ruling in North Carolina State Dental Board v. FTC on the risks for unified bars of potential attacks based on antitrust liability when the majority of the decision-makers are active practicing lawyers.

I would imagine that the likelihood of the Court taking this lawyer’s case up is small, if for no other reason than that statement is true about any effort to get the Supreme Court to hear a case. But the motion seeking stay makes arguments that, if the Court does take the matters up, could make for interesting developments and it makes for interesting reading in terms of how those arguments are constructed as well.

You can read that U.S. Supreme Court motion filing at the button immediately below:

Things you might not know (for a Thursday)

Am I about to write about this just for the click-bait possibilities? Probably.

Does that make the underlying topic less worth discussing? I hope not.

So there used to be a time when people could become lawyers without ever having to go to law school. You could effectively apprentice in the law where you could work for and study with (through working for mostly) a practicing lawyer and then be able to sit for a bar examination and, if you passed, then become licensed to practice.

At some level, that sort of model makes some sense if you believe the ultimate goal of a legal education is for someone to be able to actually practice law at the end of their professional education.

In fact, many voices of criticism of modern law school education tend to focus on how disconnected it can be from teaching people how to actually practice law.

The flip side of course is that law school does a very fine job of teaching people how to think like a lawyer — a skill that readily translates to the ability to practice a variety of kinds of law. Whereas the idea of apprenticing into the practice of law may be more limited in that if you apprentice for a probate litigator you likely will learn how to be a good probate litigator but you might not learn that in a way that would translate into practicing some other type of law.

What you might not know (and I certainly didn’t before today) is that you can still apprentice into the law in California. I learned this from today’s news over at Above the Law that Kim Kardashian (you may have heard of her) is pursuing that path to becoming a California lawyer.

Mulling all of that over has returned me to a thought that I kick around from time-to-time from admittedly a different perspective but that is certainly related.

If successfully attending law school and passing the bar exam actually do each have real meaning such that both have to be required to practice law, then why shouldn’t (other than character and fitness requirements as an additional piece of the puzzle) the logical consequence of that be that anyone who has managed to do that to be able to practice law in at least one state, then be considered sufficiently qualified to be able to then at least apply to be admitted in any other state without having to jump through lots of procedural hoops? (For today, I’m not even going to go the step further that might also be a legitimate question if we really want to get contemplative.)

Quite a lot of states are pretty flexible in their procedures for letting folks already licensed in one jurisdiction “waive in” to get a license in that jurisdictions without having to take another bar exam. Some states are still pretty parochial in their approach – particularly states that have a good bit of beach front property.

Not breaking: Dentons didn’t have to say “aloha” to Hawai’i

Well, at least not the goodbye, “aloha.” They can still say the other one as much as they want.

So, you probably have seen a headline somewhere in your online surfing about this wacky issue litigated before the Hawai’i Supreme Court. But, just in case you didn’t, here’s all that I think you need to know about it.

Dentons, who has featured here a few times before, would appear to be the world’s largest law firm at present. Back in 2018, it swallowed up a Hawai’i law firm. Since then it has had lawyers in its firm practicing law in Hawai’i. Not the stuff so far of an interesting story.

In one of the pieces of litigation its lawyers have been handling in Hawai’i, they filed a motion to seek pro hac vice admission on behalf of a non-Dentons lawyer licensed in California. The opposing party opposed the pro hac motion not on the basis of any problem with the California lawyer, but on grounds that Dentons was engaged in the unauthorized practice of law. Why? Is a question you, dear reader, might ask. Well, because not every lawyer at Dentons is licensed in Hawai’i.

Sounds like a crazy argument doesn’t it?

It actually was a crazy argument, but it was an argument supported by a slightly-messed up court rule. You can read the entirety of the 21-page opinion resolving the situation here.

The short version of what you’d find if you had the time to read that 21-page opinion is that it is true that Hawai’i used to have extremely restrictive and parochial rules preventing anyone who was not a Hawai’i-licensed lawyer from serving as a partner in a law firm in Hawai’i.

Believe it or not, those restrictions were a part of Hawai’i’s ethics rules until 1981. Beginning with changes starting in 1981, those restrictions were lifted and modified. A number of places in the present ethics rules in Hawai’i clearly indicate that it must be true that a multi-state law firm can have offices in Hawai’i. (One of them is Hawai’i’s RPC 7.5 about letterhead. This marks the first time in history I’ve found an ethics rule about letterhead to have been a helpful part of a state’s ethics rules.) But there was still one Hawai’i rule, not in the ethics rules but a different Hawai’i Supreme Court rule that had potentially problematic language if you were part of a multi-state law firm — Haw. Sup. Ct. R. 6 “Lawyer’s Professional Business Organizations.”

Specifically, Section (d)(1) of that rule provided that “[s]hares or interests in a lawyers’ professional business organization may be owned only by a lawyers’ professional business organization or by one or more persons licensed to practice law in this state by this court….”

Sometimes it only takes the slimmest of reeds for a certain kind of lawyer to be willing to make what otherwise seems like an outrageously foolhardy argument on behalf of a client. Turned out that the lawyer opposing Dentons in this case was, at least for a short period of time, that kind of lawyer. (NB: If you are looking for further proof of any pet theories you have about living in a simulation, the lawyer’s surname is (no kidding) Bickerton and, according to this article from a publication in Hawai’i he had the chutzpah to actually call one of Dentons’ arguments a “dumb ass argument.”)

The Hawai’i Supreme Court was able to dispose of this issue, and avoid having to address serious constitutional questions that would have arisen had Bickerton’s client’s rule interpretation been given merit, by explaining that the rule in question had been superseded by implication.

The court also ended its opinion by addressing any concerns that might be raised over the possibility that attorneys not licensed in Hawai’i could direct the conduct of Hawai’i lawyers without being subject to the jurisdiction of the disciplinary authorities in Hawai’i. It did so by referencing case law that (thankfully) concluded that Oregon general counsel for an Oregon company was not engaged in unauthorized practice in Hawai’i by assisting from Oregon and being actively involved with local Hawai’i counsel.

That portion of the opinion seems only to have been necessary because Hawai’i is still operating with an antiquated version of RPC 5.5 in place. While the Hawai’i Supreme Court has these issues in the front of its mind, it really ought to give some thought to adopting a version of ABA Model Rule 5.5 to make things a bit easier over there.

Until then, Me ka aloha pumehana.

Yet another reason for change. Pretty much the most serious reason.

So there are things that can really make you feel small.  And there are things that can really lead to despair and a feeling of helplessness.  Fortunately, there are few things that do both at once.  The report from the Intergovernmental Panel on Climate Change can do both of those things pretty simply.  If you haven’t read it, or at least parts of it, you can do so at this link.  If you don’t want to read the report itself (or parts of it), then you can go read one of the many articles discussing at length its sobering warnings of what the future (the close-enough-future that we can imagine ourselves in it pretty easily) here or here or here for example.

You really ought to read as much about it as you can because, to a pretty significant extent, whether we have a habitable planet is just about all that really matters.  And, though the more you digest the news about the situation the easier it is to feel small and helpless, the reaction needs to be significantly different from that.

Why am I writing about this at a legal ethics blog?  (Beyond the cop-out sort of reason in which I would tell you it feels a bit petty to write about anything else given the stakes, of course.)  Well, it isn’t because lawyers are somehow going to save us from this outcome.  For every lawyer out there who lobbies a state legislature to impose some new regulation to try to reduce carbon emissions, there will be another lawyer who ends up representing the industry that seeks to challenge that legislation in court.  That’s the nature of our profession.

But, our profession can try to do a few things to not be part of making the problem worse.

A lot of the discussion about what the future of the practice of law is going to look like involves embracing technology and regulatory questions about ways in which the traditional approach to lawyer regulation may be stifling innovation that would ultimately benefit consumers of legal services.  In my opinion, all of that should continue as quickly as we can move the conversation forward.  But, as we try to talk about what the future of the profession should look like, we ought to be bearing in mind many of these much larger issues.

What can we do to make sure that technological solutions are used so that people in the court system do not have to make multiple, ultimately unnecessary, trips across town for court when nothing happens that couldn’t be handled over the telephone or by video conference or web stream if courts would permit that to occur?

What options should we be considering empowering so that fewer disputes go into the traditional court system at all if they could be resolved through online dispute resolution?  What can we do to try to better fashion courts into places that can themselves be resolving disputes online?

What can we do to persuade those remaining jurisdictions that have been unwilling to move to electronic filing to give up the fight and swiftly enact electronic filing?

Pursuit of these sorts of initiatives can save an incremental number of natural resources.

And, why can our profession readily get comfortable with relaxing the artificial barriers we impose on the ability of a lawyer licensed in one state to actively practice law in another state only in the aftermath of disasters?  Many states have issued ethics opinions in the wake of various weather disasters or passed court rules to permit flexibility for out-of-state lawyers to go to the disaster area and render legal assistance without fear of being accused of unauthorized practice of law.  My own state did so a few years back.

The ABA very recently just issued Formal Ethics Opinion 482 encouraging lawyers to be ready for disasters and to plan ahead to protect their own practice and protect their clients’ cases and matters from adverse impact in the wake of disasters.  The ethics opinion gives very good guidance and, perhaps, it gave that guidance far enough in advance of the devastating impact that Hurricane Michael is currently inflicting on a part of the world where my family has vacationed every summer for the last almost 20 years, Apalachicola and St. George Island, Florida, so that lawyers in that part of the world knew enough to have been prepared in advance.

The IPCC report presents a pretty clear indication of the coming disaster if radical change is not undertaken.  Overhauling the regulation of the legal system to remove artificial barriers to cross-border practice and barriers that prevent technology from making it easier for clients to find lawyers and for lawyers to practice law without unnecessarily wasting resources seem like some things that amount to the least our profession can do to not be part of making worst-case scenarios even more likely to come to pass.